MC0-04978

RAD File / Dossier de la SAR : MC0-04978 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 15, 2021 Date de la décision Panel Ritu Gambhir Tribunal Counsel for the person who is the subject of the appeal Henry Igbinoba Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX ("Appellant"), a citizen of Nigeria, appealed a decision of the Refugee Protection Division ("RPD") dated January 29, 2020 rejecting her claim for refugee protection. The Appellant is asking the Refugee Appeal Division ("RAD") to substitute a positive decision in place of the RPD's negative determination or to return the matter to the RPD with directions to accept the claim.1 DECISION [2] I allow the appeal and send the matter back to the RPD for redetermination by a differently constituted panel. BACKGROUND [3] The Appellant is a 40-year-old woman from Lagos. She alleges she is a lesbian and in 2009, she married a man who was aware of and did not have a problem with her sexual orientation. During the course of the marriage, he became jealous of her career success and he mentally, physically, and sexually assaulted her. He also allowed one of his friends to sexually assault her, recorded her interactions with her same-sex partner by means of hidden cameras in their home, and recorded their cell phone conversations. On December 15, 2015 he reported her sexuality to the police. [4] On XXXX XXXX, 2015, she travelled from Nigeria to the United States ("US") on a visitor visa, which she overstayed. She divorced her husband and in 2017 she married a bisexual man who agreed to sponsor her for permanent residency. She alleged he physically abused her, including by dousing her with rubbing alcohol and setting her on fire, and that he did not complete the sponsorship process. On XXXX XXXX, 2018, she crossed the border into Canada at Roxham Road and made a claim for refugee protection. [5] The Appellant's two adopted children (the children of one of her sisters) remain behind in Nigeria. [6] The RPD heard the claim on December 17, 2019. The RPD rejected the claim on January 29, 2020. The determinative issue before the RPD was credibility and the RPD found the Appellant was not credible. [7] The Appellant was represented by different counsel before the RPD and the RAD. [8] The Minister did not intervene before the RPD or the RAD. NEW EVIDENCE AND ORAL HEARING The new evidence presented by the Appellant is rejected [9] Subsection 110(4) of the Immigration and Refugee Protection Act ("IRPA") provides that an appellant may only present evidence that arose after the rejection of their claim by the RPD, or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection.2 Where evidence meets one of these criteria, the RAD will then go on to consider whether the evidence is credible, relevant, and new, as per Singh/Raza.3 [10] The Appellant submitted as new evidence a supplemental report from her psychiatrist XXXX. XXXX XXXX XXXX dated March 2, 2020 pertaining to a visit on XXXX XXXX, 2020, a medical prescription from Dr. XXXX dated February 26, 2020, three information sheets about the drugs she had been prescribed and a report from a social worker, Ms. XXXX XXXX XXXX XXXX, dated March 9, 2020.4 [11] The Appellant argues that the evidence is relevant as to her current mental state and is credible as it comes from third parties who have no interest in the outcome of the proceeding. The Appellant argues that the evidence clearly post-dates the rejection of the claim. In the alternative, the Appellant argues that should the RAD find that the evidence concerns a matter that was already before the RPD, the Appellant asserts she could not have been expected to provide this evidence at an earlier time, as the RPD never raised the issue of the Appellant's mental health until the negative decision was made.5 XXXX XXXX, medical prescription and drug information sheets [12] The Appellant submitted to the RPD a psychiatric report from Dr. XXXX dated November 18, 2019.6 It was short and to the point. It was addressed to the referring physician, Dr. XXXX XXXX, a family doctor. Dr. XXXX briefly related the Appellant's story as self-reported to him. He indicated he provided her with "questioners [sic]" for her to complete on XXXX and XXXX and that he diagnosed her with "XXXX XXXX XXXX [sic]". He prescribed "Sertraline 50 Mg for XXXX, Trazodone 50 Mg for Sleep and Ativan 1 Mg for XXXX XXXX." [13] The Appellant now seeks to submit a supplemental XXXX XXXX of a visit to Dr. XXXX on February 26, 2020, a prescription dated the same day and three drug information sheets (Sertraline, Trazodone and Ativan). Again, the report was addressed to the referring physician, Dr. XXXX. It repeated the information and diagnosis contained in the first XXXX XXXX. It also contained some new information. Dr. XXXX stated that he saw the Appellant after she had received a negative decision from the RPD and based on her symptoms, he further diagnosed her with "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX]".7 According to the report, he increased the dosage of some of the medications previously prescribed to "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX".8 However, the prescription itself stated that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX for 30 days.9 [14] Turning to consider the statutory requirements set out in subsection 110(4) of the IRPA, some of the information in the supplemental XXXX XXXX, notably the diagnosis of XXXX XXXX XXXX XXXX XXXX, post-dates the rejection of the claim. The prescription and drug information sheets that accompany the report also post-date the rejection of the claim. In considering the factors set out in Singh/Raza, I accept that this evidence is new. I agree with the Appellant that the evidence is credible as it is from third parties who have no interest in the outcome of the proceeding. It is relevant to the determination of the viability of an internal flight alternative, specifically whether it would be reasonable for the Appellant to return to Nigeria given her current mental health status. I will admit the report, the prescription and drug information sheets. Social Worker's Report [15] The report from the social worker Ms. XXXX XXXX XXXX XXXX is dated March 9, 2020 and pertains to an assessment visit on January 28, 2020, after the RPD hearing. Ms. XXXX XXXX XXXX explicitly stated that the report was prepared for the purposes of the refugee appeal. Ms. XXXX-XXXX clinical impressions relied on self-reporting by the Appellant and the tests she administered to the Appellant. She summarized her clinical impressions as follows: After reviewing Ms. XXXX interview, observation, evaluations and test scores, the clinical impression suggests that Ms. XXXX is exhibiting symptoms coherent with anxiety and psychological disorder. These ordeals tend to cause emotional numbness, sleep disturbances, uneasiness, extreme guilt, sadness, terror, and irritability. Ms. XXXX exhibit symptoms from all these categories. Ms. XXXX also exhibits symptoms consistent with generalized XXXX and XXXX XXXX.10 [16] Ms. XXXX XXXX XXXX stated that being depressed could make it difficult to pay attention and stay focused, which could affect memory. Stress and anxiety could also get in the way of concentration. She remarked that "[w]hen an individual is tense, and their mind is overstimulated or distracted, their ability to remember can suffer."11 She also observed that "[s]tress caused by emotional trauma can also lead to memory loss, which will significantly have an impact on providing accurate testimonies or remembering dates and events."12 She opined that it would be psychologically devastating for the Appellant if she was returned to Nigeria because she would be forced to suppress her sexual orientation and because the Appellant associated Nigeria with vulnerability and powerlessness. [17] Turning to consider the statutory requirements set out in subsection 110(4) of the IRPA, the assessment was conducted after the RPD hearing and the clinical impressions and opinions in the report post-dated the rejection. This having been said, the report was prepared for the purposes of the appeal: my role is not to provide the opportunity to complete a deficient record submitted to the RPD. The Appellant has not provided a reasonable explanation as to why she was not able to obtain and submit the assessment prior to the rejection of her claim. She has not alleged that her counsel was incompetent and did not advise her to seek an assessment, or she was unable to make an appointment with the social worker, or to afford the cost of the assessment. As such, the evidence does not meet the statutory requirements in subsection 110(4) and will not be admitted as new evidence on appeal. I decline to hold an oral hearing [18] Generally, the RAD must proceed without an oral hearing, as per subsection 110(3) of the IRPA. However, under subsection 110(6) of the IRPA, it is open to the RAD to hold a hearing if the new evidence: (a) raises a serious issue with respect to an appellant's credibility; (b) is central to the refugee protection decision; and (c) if accepted, would justify allowing or rejecting the refugee protection claim. Although I have admitted some new evidence, for the reasons explained below, it would not justify allowing or rejecting the Appellant's refugee protection claim. Therefore, an oral hearing cannot be held. [19] Were I to hold an oral hearing, it would be limited in scope to Dr. XXXX supplemental XXXX XXXX, the medical prescription and drug information sheets, which are relevant to the Appellant's current mental health status. This evidence does not shed additional light on the Appellant's mental state in the months leading up to and at the time of the RPD hearing. Ultimately, this is what matters in this appeal because the Appellant argues that the RPD breached procedural fairness by failing to adequately consider Dr. XXXX first XXXX XXXX as to her mental state. The supplemental psychiatric report of Dr. XXXX and accompanying documents do not respond to the key deficiency the RPD identified with respect to his first XXXX report, namely that the diagnosis in the report did not sufficiently shed light on why the Appellant did not mention her two same-sex relationships in her Amended Basis of Claim Form narrative. I would not be able to make a determination on this point without rehearing the evidence that was presented to the RPD. OVERVIEW OF THE APPEAL [20] The Appellant argues the RPD made the following errors: a. committed a breach of procedural fairness by failing to assess the Appellant's claim under section 97 of the IRPA;13 b. committed a breach of procedural fairness by impugning the XXXX XXXX without asking the Appellant any questions about her mental state;14 c. ignored the information in Chairperson's Guideline 9 about the difficulties lesbian, gay, bisexual, trans and queer ("LGBTQ") individuals face especially when it comes to their mental health and also the relevance of Chairperson's Guideline 8 about vulnerable persons;15 d. erroneously assessed the probative value of the psychiatric report, in particular its relevance to the reasonableness of the Appellant's explanations for omissions and inconsistencies identified by the RPD;16 e. erroneously assessed the Appellant's testimony about her mental state;17 and f. erroneously assessed the supporting affidavit from the Appellant's former same-sex partner and the support letter from an LGBTQ organization in Toronto.18 [21] I find the errors made by the RPD with respect to the assessment of the mental health evidence and the Chairperson's Guidelines are sufficient to overturn the decision of the RPD. As such, I need not consider grounds (a) or (f). However, for reasons I will explain, I am not able to substitute a positive decision and I send the matter to the RPD for redetermination by a differently constituted panel. ANALYSIS [22] My role is to look at all the evidence and decide if the RPD made the correct decision.19 [23] I have conducted an independent assessment of the record, including a review of the audio recording of the RPD hearing, and the most recent National Documentation Package for Nigeria (November 30, 2020). [24] When assessing the evidence in this appeal, I have also considered the Chairperson's Guideline 4 ("Gender Guideline"),20 Chairperson's Guideline 8 ("Vulnerable Person's Guideline")21 and Chairperson's Guideline 9 ("SOGIE Guideline").22 As well, I have considered the mental health evidence that was before the RPD. [25] After conducting my own assessment, I find the determinative issues are procedural fairness and credibility. RPD Breached Procedural Fairness in Assessing the Psychiatric Report [26] The Appellant contends the RPD breached procedural fairness because it impugned the psychiatric report without asking the Appellant any questions about her mental state. [27] The RPD stated in its reasons as follows: The Claimant submitted a XXXX XXXX in support of her claim. This report is lacking in details regarding the qualifications of the author, the tests administered, or the methodology applied. The report indicates that the Claimant was "tearful" and stated that she had been suffering from panic attacks, nightmares, and poor sleep. There is a diagnosis of "XXXX XXXX XXXX XXXX XXXX XXXX." The author of the report indicates that "I did provide some questioners [sic] to complete for Depression and Anxiety" and prescribed medications to the Claimant. I find this report severely lacking in detail, however, I do not find that these concerns are sufficient to question the diagnosis of the Claimant. During the hearing, the Claimant displayed signs of obvious distress, particularly when talking about her American husband and the abuse she endured from him in the US. However, I do not find the Claimant's diagnosis of XXXX XXXX XXXX to be a reasonable explanation for why she did not mention her two same-sex relationships in her narrative. The XXXX XXXX did not sufficiently shed light on this omission. [footnotes omitted]23 [28] I agree with the Appellant that the RPD committed a breach of procedural fairness. The comments of the RPD regarding the qualifications of the author indicate that the RPD did not understand that the author of the report was a psychiatrist certified by the Royal College of Physicians and Surgeons of Canada. This was stated on the face of the report. Additionally, when the Appellant's counsel questioned her about the report, he characterized it as being from a "mental health doctor".24 It should have been clear to the RPD that the author of the report was a psychiatrist. [29] I reviewed the audio recording of the RPD hearing, and I note that the Appellant's counsel also relied on the findings in the report in his submissions.25 He acknowledged there were difficulties with the Appellant's testimony and asked the RPD to be mindful of the Appellant's mental state. He walked the RPD through the report and said, "Madam Member I urge you to give her the benefit of the doubt considering that there is an expert report before you speaking to some underlying mental health challenges."26 Again, at the end of his submission, he said: "So in summary I would say that but for her current mental health status I could have said okay you can slam her for the omissions."27 [30] Dr. XXXX XXXX XXXX was poorly written but this was not the fault of the Appellant. In light of Chairperson's Guidelines 4 and 9 coupled with the Appellant's own testimony about her mental health status as well as the RPD's recognition that the Appellant displayed signs of obvious distress during the hearing, I would have expected the RPD to engage more deeply at the hearing with the XXXX XXXX. [31] Unfortunately, the RPD asked no questions about the report during the hearing. As it had done with the supporting affidavit from the Appellant's ex-partner, the RPD could have mentioned its concerns about the report and given the Appellant or her counsel an opportunity to clarify. The RPD could have asked about the author's credentials, what tests were administered, whether the Appellant was taking her medication and whether she was experiencing any side effects. In light of the fact that the report was specifically raised by the Appellant's counsel during the hearing, the Member had an obligation to bring up her concerns rather than saying nothing and then discounting the relevance of the report in the decision.28 In the circumstances, this constituted a breach of procedural fairness. RPD Erred in its Consideration of the Chairperson's Guidelines [32] The RPD stated in its reasons that it had considered and applied Chairperson's Guidelines 4 and 9 throughout the proceeding.29 The Appellant argues that the RPD did not properly apply Chairperson's Guideline 9 and in particular the section that refers to Chairperson's Guideline 8 about vulnerable persons.30 [33] While Chairperson's Guidelines 4, 8 and 9 focus on different types of refugee claimants, they are similar in that they caution decision makers to be mindful that some individuals-including individuals who suffer from mental illness, who have suffered gender-related persecution and who have been victims of persecution based on sexual orientation and gender identity-may face particular difficulties when called upon to make their case before the Immigration and Refugee Board of Canada ("IRB").31 These can include difficulties in presenting or addressing evidence.32 [34] To her credit, during the hearing the RPD Member was sensitive to the difficulties the Appellant was having during the hearing and took steps to try to make the Appellant feel more comfortable. She periodically asked the Appellant how she was doing and recessed the hearing twice to allow the Appellant to regain her composure.33 From a procedural point of view, she did what she could to accommodate the Appellant. Her conduct of the hearing was aligned with the expectations in the Chairperson's Guidelines. [35] However, Chairperson's Guidelines 4 and 9 go beyond procedural accommodation and I am not satisfied that the RPD adequately took them into account in her substantive questioning of the Appellant or her analysis of the Appellant's testimony about her mental health status. She did not ask the Appellant any questions about her mental health status during the hearing. For example, she could have asked the Appellant how long she had been experiencing the symptoms that led her to be diagnosed with XXXX XXXX XXXX, in particular when they began as this was relevant to whether some allowance should be made for inconsistencies between the Appellant's testimony and her original and amended Basis of Claim Form narratives, and also for explanations that the Appellant gave at the hearing. In the decision itself, there is one mention of the Chairperson's Guidelines but no elaboration of how they were considered and applied.34 RPD Erred in assessing the Appellant's testimony as to her mental health status [36] The RPD observed in the reasons that the Appellant displayed obvious signs of distress during the hearing but was silent on if this factored into her assessment of the Appellant's testimony. There was no reference to any of the Appellant's other testimony as to her mental health status. The Appellant described "losing it" and being on the bus and train and talking to herself, and not even caring about taking a shower, and going to the hospital to seek help and immediately being referred to a psychiatrist.35 She said her mental health status negatively impacted not only her ability to testify before the RPD, but also more broadly to present her refugee claim.36 This evidence went to the heart of the Appellant's claim and should have been tested to determine if it was a pertinent consideration when assessing the consistency and coherence of both the oral and documentary evidence. [37] For example, I find the following exchange between the RPD and the Appellant about the omission of her ex-partner's name in her narratives to have been worthy of further exploration by the RPD: MEMBER: Why did you not write about XXXX in your narratives? CLAIMANT: When I wrote my narrative I ... I was a ghost of myself. I did not even remember a lot of things. I went through ... even as I speak to you right now I am still a damaged human being because ... [crying]37 CONCLUSION [38] I find the cumulative errors made by RPD with respect to its consideration of the mental health evidence and its failure to apply Chairperson's Guidelines 4 and 9 in its substantive questioning or analysis of the Appellant's testimony about her mental health status to be sufficient to overturn the decision. However, because the RPD did not fully engage with the mental health evidence before it, I am not able to substitute a decision. [39] The appeal is allowed and pursuant to paragraph 111(1)(c) of the IRPA, I return the matter to the RPD for redetermination by a differently constituted panel. (signed) Ritu Gambhir Ritu Gambhir April 15, 2021 Date 1 Exhibit P-2, Appellant's Record, Memorandum, at p. 116. 2 Immigration and Refugee Protection Act ("IPRA"), S.C. 2001, c. 27, subsection 110(4). 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 (CanLII). 4 Exhibit P-2, Appellant's Record, New Evidence, at pp. 14-39. 5 Exhibit P-2, Appellant's Record, Memorandum, at p. 105, paras. 67-71. 6 Exhibit RPD-1, Amended RPD Record, Exhibit 4, at p. 140. 7 Exhibit P-2, Appellant's Record, Second report of Dr. Arfai (March 2, 2020), at p. 39 8 Exhibit P-2, Appellant's Record, Second report of Dr. Arfai (March 2, 2020), at p. 39. 9 Exhibit P-2, Appellant's Record, Prescription, at p. 37. 10 Exhibit P-2, Appellant's Record, Report of Ms. Raji-Gambari (March 9, 2020), at p. 34. 11 Ibid. 12 Ibid. 13 Exhibit P-2, Appellant's Record, Memorandum, at pp. 112-115, paras. 95-99. 14 Exhibit P-2, Appellant's Record, Memorandum, at p. 96, paras. 31-33. 15 Exhibit P-2, Appellant's Record, Memorandum, at pp. 91-92, paras. 13-15; 101-103, paras. 60-64. 16 Exhibit P-2, Appellant's Record, Memorandum, at pp. 96-99, paras. 34-51. 17 Exhibit P-2, Appellant's Record, Memorandum, at pp. 100-101, paras. 57-59. 18 Exhibit P-2, Appellant's Record, Memorandum, at pp. 105-111, paras. 72-88. 19 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 20 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act, Effective date: November 13, 1996, as continued in effect by the Chairperson on June 28, 2002 under the authority found in paragraph 159(1)(h) of the Immigration and Refugee Protection Act. 21 Chairperson's Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: December 15, 2006, Amended: December 15, 2012. 22 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017. 23 Exhibit RPD-1, Amended RPD Record, RPD Reasons, at pp. 7-8, para. 19. 24 RPD Hearing Recording (December 17, 2019), at 01:29:00-01:32:00. 25 RPD Hearing Recording (December 17, 2019), at 01:29:00-01:32:00. 26 RPD Hearing Recording (December 17, 2019), at 01:46:00. 27 RPD Hearing Recording (December 17, 2019), at 1:53:00-1:54:00. 28 Jamal v. Canada (Citizenship and Immigration), 2018 FC 734 (CanLII), at para. 23. 29 Exhibit RPD-1, Amended RPD Record, RPD Reasons, at p. 4, para. 2. 30 Exhibit P-2, Appellant's Record, Memorandum, at pp. 91-92, paras. 13-14. 31 Chairperson's Guideline 4, at part C; Chairperson's Guideline 8, at sections 1, 2, 14, 16; Chairperson's Guideline 9, at sections 3, 7. 32 Chairperson's Guideline 4, at part D; Chairperson's Guideline 8, at section 4.1; Chairperson's Guideline 9, at section 3.6. 33 RPD Hearing Recording (December 17, 2019), at 01:11:00, 01:25:00. 34 Exhibit RPD-1, Amended RPD Record, RPD Reasons, at p. 4, para. 2. 35 RPD Hearing Recording (December 17, 2019), at 01:30:00-01:31:00. 36 RPD Hearing Recording (December 17, 2019), at 01: 34:00-01:36:00. 37 RPD Hearing Recording (December 17, 2019), at 49:00-50:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-04978 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français